Shri.Bidur Das v. The Deputy Commissioner And ANR
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/471/2025 (IA NO: CAN/1/2025) Shri Bidur Das ... Petitioner
Versus
The Deputy Commissioner and Another ... Respondents For the petitioner : Mr. Suveer Golder For the respondents : Mr. Rakesh Kumar Heard on : 15.12.2025 Judgment on : 15.12.2025 SHAMPA DUTT (PAUL), J.
1.
The writ application has been preferred by the father of minor Susmita Das praying for meeting his daughter on daily basis till disposal of the writ application and praying for direction upon the respondent authorities to hold proper and transparent enquiry in the matter and take necessary action against the private individuals namely Mr. Dipesh Bhattacharjee and Mrs. Tripti Bhattacharjee, residents of Dollygunj village, Near Sony Tiles, Sri Vijaya Puram for enticing the minor daughter of the petitioner, and to follow up with the police complaint made by the petitioner with respect to the same issue
on 25/10/2025 before the Station House Office, Police Station Pahargaon, Sri Vijaya Puram.
2.
The petitioner has further prayed for restoration of the custody of his minor daughter with or without supervision of Child Welfare Officer or Designated Social Worker in terms of section 37(1)(b) of Juvenile Justice (Care and Protection of Children) Act, 2015.
3.
In course of hearing a report was called for from the respondent No. 2, being the Chairman, Child Welfare Committee. 4.
It appears from the said report that the mother of the minor was working as a housemaid in the house of Mr. Dipesh Bhattacharjee and Mrs. Tripti Bhattacharjee of Dollygunj, Sri Vijaya Puram and the minor was sent to their care and protection and has lived with them for more than 4 1⁄2 years. 5.
Subsequently, when the mother of the minor, stopped working in the residence of Mr. and Mrs. Bhattacharjee and the petitioner and his wife wanted to take their minor child with them, the minor refused to accompany and live with them. 6.
The minor is at present is with the Child Welfare Committee, Andaman and Nicobar Islands.
7.
Considering the issues involved in the present case, this Court had directed the minor to be produced and was heard in my chamber.
8.
The minor has clearly stated before this Court that she is not willing to stay with her biological parents as she apprehends that she may be married of just like her elder sister. The minor herein is interested to study further and expressed her willingness to stay with Mr. and Mrs. Bhattacharjee or the Child Care Institution and she would want/like to continue meeting with Mr. and Mrs. Bhattacharjee.
9.
The minor (15 years) has categorically refused to meet her biological parents.
10.
In Smt. Anjali Kapoor - versus - Rajiv Baijal reported in Civil Appeal No. 2628 of 2009 [Arising out of SLP (C) No. 17184 of 2007], the Supreme Court held that :- "10)Under the Guardian and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law (See Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745).
11)In the case of Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840, this Court has
observed that, the principle on which the Court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors. This Court considering the welfare of the child also stated that, the children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children have, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society."
12)In Mrs. Elizabeth Dinshaw Vs. Arvand M.
Dinshaw and Anr. (AIR 1987 SC 3), this Court has observed that whenever a question arises before Court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.
13)At this stage, it may be useful to refer to the decision of Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar (AIR 1935 Madras 195), wherein the Court has observed, that, if a minor has for many years from a tender age lived with grand parents or near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the banafide of the petition by the father for their custody.
14)In our view, the observations made by the Madras High Court cannot be taken exception by us.
In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision.
15)In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was observed that, "... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, or by physical comfort only. The word welfare must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical wellbeing. Nor can the ties of affection be disregarded." 16)In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that an application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment."
17)In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that "welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important
are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."
21)Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.".
11.
Considering the fact that the minor in the present case is aged about 15 years and admittedly being a minor shall continue to remain with the Child Welfare Committee until further orders.
12.
Her prayer for meeting Mr. and Mrs. Bhattacharjee is to be considered by the appropriate forum in accordance with law. 13.
As the minor has refused to either meet her biological parents, and refused to be released in their custody, the writ application filed by the minor's father is disposed of as directed above.
14.
Connected application being CAN/1/2025 is also disposed of.
15.
Parties to act on the server copy of this order downloaded from the official website of this Court.
[ SHAMPA DUTT (PAUL), J. ]